Posted by: Patricia Salkin | April 30, 2019

NY Appellate Court Finds Historic Resources Study Was Not Exempt from Disclosure under the State Freedom of Information Law

This post was authored by Amy Lavine, Esq.

A New York appellate court held in April that a historic resources study wasn’t an intra-agency document exempt from disclosure under the state Freedom of Information Law.

The particular document at issue, the “Fort Greene Park Historic Resource and Management and Operations Study,” was prepared by Nancy Owens Studio LLC for the New York City Department of Parks and Recreation. While the intra-agency exemption can apply to documents prepared by outside consultants, the court found in this case that the Department failed to establish that it had retained Owens Studio for the purpose of preparing the report, and this was “a necessary prerequisite for invocation of the intra-agency materials exemption for documents prepared by an outside consultant.” The court noted in particular that only “fragmentary documents” were offered regarding the contract between the Department and Owens Studio, and these documents merely established that Owens Studio was “retained to perform some work.” None of the documentation established that Owens Studio was retained to prepare the report at issue, however, nor did it “establish what Owens Studio was retained to do, nor, in particular,… that respondent itself, as opposed to some other entity, retained Owens Studio to prepare the report.”

The petitioners’ request for costs and attorneys fees wasn’t addressed by the trial court, however, and the appellate court remanded as to this issue. As it explained, the Freedom of Information Law was amended in 2017 to “provide that the court ‘shall’ award counsel fees where the agency has no basis for denying access to the material sought.” This change in the law’s provision for costs and fees was intended to “encourage compliance with FOIL” and reflected the legislature’s finding that “[o]ften, people simply cannot afford to take a government agency to trial to exercise their right to access public information.” In accordance with these amendments, the trial court was directed on remand to address the petitioners’ request for fees, including determining whether there was any reasonable basis for the Department’s refusal to disclose an unredacted copy of the historic resources study.
Matter of Reiburn v. New York City Dept. of Parks & Recreation, 2019 NY Slip Op 03295 (N.Y. App. Div. 1st Dept. 4/30/19).

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